Even at 93, He Finds a Case Too Important to Pass Up

Robert M. Morgenthau is asking the United States Supreme Court to take on the case of a man who has been on death row in Alabama for 24 years.

Hiroko Masuike / The New York Times

March 14, 2013

About New York

By JIM DWYER

Grab a few minutes on Thursday morning with Robert M. Morgenthau. But don’t be late. There’s a little time open after his two morning meetings, and before one that begins at 12:30. He hoists a legal brief from atop the heap on his desk, which seems to have been transported intact from the one he vacated in 2009 after 35 years as the Manhattan district attorney.

A vintage mess, but a fresh legal brief.

Mr. Morgenthau, 93, and two other prominent former prosecutors are asking the United States Supreme Court to take up the case of William Ernest Kuenzel, who has been on death row in Alabama for 24 years.

Based on the testimony of two witnesses, Mr. Kuenzel was convicted in 1988 of murdering a convenience store clerk. Records that became available only in 2010 revealed that those two witnesses — one of whom admitted that he himself was involved in the murder — actually did not implicate Mr. Kuenzel when they first spoke with the authorities. In fact, they originally gave entirely different accounts from what they testified to at trial, but the defense lawyer was unaware that their stories had changed. So were the jurors.

Mr. Morgenthau learned about the case from Jeffrey Glen, a law partner of his late son-in-law. Their firm, Anderson Kill & Olick, was working on the appeal, along with David Kochman. To Mr. Morgenthau’s disbelief, the case was rejected by federal courts in Alabama, which ruled that the new evidence did not “refute the possibility that the defendant committed the crime.”

“It’s so wrong to say there’s presumption of guilt because he was convicted once — without the newly discovered evidence,” Mr. Morgenthau said. “I just thought that was off the wall.”

After all, he said, that guilty verdict was rendered by a jury that did not have all of the facts. “You know, Dickens wrote, ‘The law is an ass,’ ” Mr. Morgenthau said. “You say to yourself, ‘Not only is this guy innocent as a matter of law, he’s innocent as a matter of fact.’ I decided I wasn’t just going to sign my name to a piece of paper.”

He contacted Gil Garcetti, who served 32 years in the Los Angeles district attorney’s office, and E. Michael McCann, who was the district attorney of Milwaukee for 38 years, and they agreed to join him in a friend-of-the-court brief.

The opening lines explained why their views were worth hearing: They wrote “from the unique perspective of having overseen and been ultimately responsible for more than 7,000,000 criminal prosecutions.”

Of those seven million, how many were his?

“Three and a half,” Mr. Morgenthau said.

Million?

He nodded.

“We averaged about 100,000 a year for 35 years,” he said.

Few people who talked politics with President Franklin D. Roosevelt, as Mr. Morgenthau did as a young man, or survived the sinking of a Navy destroyer in the Mediterranean and the torpedoing of another one during World War II, as he did while serving in the Navy, remain active in public affairs.

Now with the firm Wachtell, Lipton, Rosen & Katz, Mr. Morgenthau spends little time these days on criminal cases. He is fighting for immigration reform.

But he was opposed to the death penalty through his time in office — “we reduced murder by 90 percent and never once sought it,” Mr. Morgenthau said — and one of the defining events of his last decade in office involved his role in reversing the wrongful conviction of five teenage boys for the rape and attempted murder of a jogger in Central Park. Nearly half of the Morgenthau biography appended to the Supreme Court brief is devoted to describing that case.

“That was a matter of newly discovered evidence,” he said. “I had to act. This case reminded me of that.”

He wants to be sure that he is not seen as a carpetbagger, sticking his nose into the affairs of Alabama.

“My grandmother was born in Montgomery, Alabama,” he said. “Settie — I guess her real name was Lizette Lehman Fatman. Her kid brother became governor of the State of New York and a United States senator.” (That would be Herbert H. Lehman, for whom Lehman College is named.)

His closest friend from the Navy, Marvin Eubanks, who survived the bombings of their destroyers, was from Alabama. “Also, the first lieutenant from Harry S. Bauer was from Anniston, Alabama, and I visited him down there,” Mr. Morgenthau said.

The amicus brief, which was drafted by the firm Steptoe & Johnson, comes in at a tidy 25 pages.

“You’re not being paid by the word,” Mr. Morgenthau said. “What are the crucial issues? Stick with them. And don’t see how many words you can get in your brief.”

Correction: March 21, 2013

The About New York column on Friday, about a death row case in Alabama that caught the attention of Robert M. Morgenthau, who spent 35 years as the Manhattan district attorney, misspelled part of the name of the firm where he now works. It is Wachtell, Lipton, Rosen & Katz (not Wachtel).